Tuesday, January 05, 2010

The Constitution as Hail Mary

By Bob Hockett

With some recognizable form of the recent House and Senate health insurance bills now all but set to be passed into law by Congressional action and Presidential signing later this month, it was perhaps all but inevitable that one or two naysayers might look for some reason to hope the Supreme Court might nix the effort. But one might nevertheless have hoped for something a bit more serious that what three well known public figures have offered in this past weekend's Wall Street Journal in this vein.

In the issue in question, Orrin Hatch, Kenneth Blackwell, and Kenneth Klukowski (hereinafter 'HBK') proffer three surprisingly frivolous arguments purporting to establish that what they call 'the Health-Care Bills' are 'unconstitutional.' Since I have been writing, like Neil and Mike, with some regularity about the health insurance reform effort, I am perhaps naturally prompted to comment on each of the three arguments.  Happily it requires little time.

HBK argue that '[f]irst, the Constitution does not give Congress the power to require that Americans purchase health insurance.' Really?  How about the taxing power? Well, according to HBK, 'Congress's powers to tax and spend do not apply because the mandate neither taxes nor spends.'

Now as DoL readers know, Mike has already addressed this matter quite thoroughly in a FindLaw column, so I can be very brief here. The short reply to HBK is this:  On what theory is the penalty which the IRS is empowered by the legislation to assess against those who do not insure not a tax?

Here is how readily the SG can defend the mandate in any court: 'Your Honors, the legislation imposes a new tax upon those who add to the cost of health insurance by not participating in some insurance pool.  The latter is a cost which the government must otherwise foot in subsidizing coverage, as it now does via the legislation, to 30 million of our erstwhile 46 million uninsured. Those who take measures to avoid imposing these costs, by participating in insurance pools, are exempted from the tax.' What, one wonders, do HBK say to this?

Next, HBK report that '[a] second constitutional defect of the Reid bill passed in the Senate involves the deals he cut to secure the votes of individual senators.' The constitutional defect here, they go on, is that 'selective spending targeted at certain states runs afoul of the general welfare clause. The welfare it serves is instead very specific...'

One wonders, upon reading this charge, what legislation would not run afoul of the Constitution by HBK's lights. Since literally all, or at the very least virtually all, legislation is arrived at through 'horse trading' and 'logrolling,' involving special favors for some legislators' constituents in return for those legislators' votes in favor of sponsoring legislators' bills, one must conclude that HBK think literally all, or at the very least virtually all, of the U.S. Code to be unconstitutional.

The third and final 'constitutional defect in this ObamaCare legislation,' HBK complain, 'is its command that states establish such things as benefit exchanges, which will require state legislation and regulations.' Citing New York v. United States and Printz v. United States -- the anti-'commandeering' decisions of the 1990s -- HBK conclude that this 'command' runs afoul of our federalism as interpreted by the Rehnquist Court.

The most dramatic problem with this argument is that its own refutation is supplied by HBK themselves, who acknowledge that the legislation provides that the Secretary of Health and Human Services is to establish exchanges where states refrain from doing so themselves. That of course means that there is no 'command' to states here at all, let alone any 'commandeering.' There is, rather, an option (a declinable one) expressly made available to the states to take for themselves the role of rendering insurance more readily available to their citizens, should they so choose, instead of simply vesting that role categorically in HHS, which HBK do not deny could legitimately be done.

What, then, are we to conclude from the puzzling exercise in constitutional argumentation that is HBK's piece in the Wall Street Journal this weekend? Well, initially it is at least somewhat tempting to draw an analogy between these attempted constitutional arguments on the one hand and some of the arguments in favor of torture's putative legality made in the Bush White House on the other.
It's also initially tempting to suggest that these arguments are not meant to be serious constitutional arguments at all.  They might instead be meant simply to 'score points' by casting further clouds of suspicion, in the eyes of the constitutionally ignorant, upon the legitimacy of a presidency and of legislation to which these gents actually object on no more than partisan political grounds.
But I shall resist these temptations and attribute to HBK only the best of intentions. And that, happily, leaves us with the much more benign conclusion that HBK's only real fault is an apparent lack of even the most rudimentary understanding of the document one of them has pledged to defend and protect and all three of them have just frivolously invoked -- the anything but frivolous U.S. Constitution.  Here's to a more serious veneration of our founding document by our public servants in future.


egarber said...

On the tax issue, a libertarian friend came at me with similar arguments against its constitutionality.

I replied that in constitutional terms, it's really uneventful. I mean, the tax code is loaded with provisions that impose higher taxes in the absence of some regulable action.

Consider the charitable deduction -- if one fails to donate to charity, she'll pay more in taxes than someone who does. Same goes for mortgage deductions, writing off business expenses, etc.

What surprises me a little is that conservatives aren't bashing the mandate as a tax increase, given their general outrage in this area. Of course, virtually nobody will be paying the tax, because 99.9999% of folks will want to buy insurance (if it's affordable). But still, that hasn't held people back in the past from lashing out against on-paper increases.

egarber said...

Or given that taxpayers receive big credits for children and dependents, would anybody really say that the government is therefore "mandating" that couples have kids?

As an aside, Mike wrote that there would also be straightforward commerce clause power to require mandates, given Raich, etc.

Bob Hockett said...

Many thanks, Egarber,

I was somewhat struck by this too. My best guess as to why the Repubs are not playing up the tax angle on this one is that they're engaging in a bit of portfolio diversification: Because they know that the charge 'tax increase!' gets tea party types worked up almost irrespective of what it is that is allegedly taxed, Repubs are grounding their tax argument -- yep, they've still got one of those -- in the legislation's taxing of so-called 'Cadillac' plans. Then, since grounding the tax argument in yet other aspects of the legislation would contribute no more than marginally to the outrage-mileage they're already getting from the first tax argument, when thy come to the mandate they focus less on its tax aspect than on its 'mandate' aspect, in order to maximize the outrage-yield. Since tea party types seem to get almost as worked up by 'you aren't the boss of me' grounds for objection as they do by tax grounds, the Repubs maximize their mileage by diversifying the arguments in this manner. Of course this requires frivolity on the part of the arguers, but that doesn't seem to register as a 'cost' on their balance sheets!

Thanks for the reminder on Mike's earlier Commerce Power take on the mandate as well, which was characteristically compelling. HBK launch a remarkably flimsy argument against what they characterize as an anticipated Commerce Power fallback argument in their WSJ piece too, invoking the depressingly oft-invoked (and almost as depressingly oft-misunderstood!) Lopez decision in so doing. I considered dispatching this one as well, but then decided three strikes should suffice to show them 'out' in this posting. I do hope that all who read this post will go back to Mike's, though. Any who do will find themselves wishing the Senate would seek his counsel -- in person or on Findlaw or on this weblog -- henceforth!

michael a. livingston said...

I'm not a constitutional scholar, but it hardly strikes me as absurd that a mandate to buy things one does not need or want from private companies--the same private companies that contributed heavily to the bill's passage--raises constitutional issues. I must also wonder, if the issue is so simple, why scholars like those at the Balkinization blog are already devising strategies for defiance of the Supreme Court should the case come down the other way. I address some of these issues at http://mikelivingston.blogspot.com

Bob Hockett said...

Many thanks,Michael Livingston,

Were 'mandate' the correct or only plausible framing, I'd be able to sympathize to some degree with the intuition. I think the better framing, however, is that which I offer in the post. Risk-pooling in connection with various risks faced by everyone is a well established and widely accepted public purpose -- as taxation for purposes of national defense, police, fire departments, highways, and so on attests. Health-risk-pooling does not seem to me any different. The tax that one may pay instead of privately purchasing insurance seems to me an assessment for risk-pooling purposes like any other -- particularly in light of the fact that those who refrain from insuring end up having in effect expensively insured when going as they invariably do to publicly funded emergency rooms. The tax is accordingly best viewed as a premium. Those who insure privately are then let off the hook that is the otherwise mandatory premium -- the tax.

Thanks again,

michael a. livingston said...


This makes sense to me if one assumes that most people will pay the tax with an exception for those who happen to buy insurance. But isn't the real goal here to ensure that the vast majority of people will buy insurance, with the tax (or however it is framed) serving as a backup mechanism? Is there another situation in which Congress has required such a large number of people to buy a product from private companies, with or without a penalty if they don't? Note that I'm not saying this is a winning argument, only that it doesn't strike me as an easy case.

egarber said...


>>Is there another situation in which Congress has required such a large number of people to buy a product from private companies, with or without a penalty if they don't?

I'm wondering if this is all more political semantics than anything else.

Suppose you decide not to buy a house from a "private company." As a result, you'll pay more in taxes -- because you won't be eligible for the interest deduction. If instead of all this mandate talk, the whole thing had been framed as an opportunity to reduce one's tax bill, would there be any light between the two examples (mortgage interest and health insurance)?

Of course, trying to sell it as an offset to a tax increase brings its own peril. And since average folks generally understand and aren't offended by the mandate dynamic (they're familiar with car insurance rules), that might explain why mandates are an easier conceptual sell. But still, it seems to me that mere political framing wouldn't carry any constitutional weight (from a judicial review perspective).

Bob Hockett said...

Thanks much, Michael,

Couple of thoughts here:

1) I suppose the goal can be described in a number of ways. I tend to think the best way to do so is as attempting to ensure that people either (a) are insured more cheaply than reliance on publicly subsidized emergency rooms insure them, or (b) defray the aforementioned public cost more directly through the tax.

2) On prior precedent, I think the best such is probably that of the individual states' requiring that motorists purchase auto insurance, or of their requiring that students purchase vaccinations. As for Congress, nothing comes immediately to mind if we restrict ourselves to private providers, since military and other such cases I mentioned earlier are mainly publicly provided (unless we note increased 'outsourcing' to such as Blackwater, privately run prisons, etc.). But since the same folk who howl at the 'mandate' seem to be those who howl at a 'public option' or 'single-payer,' my gut instinct is to say that those who howl at the one should not be heard to howl at the other.

Thanks again for the thoughtful questions and comments!,

AlexanderS said...

On the first point: suggesting that people "add" to the cost of health insurance if they do not buy into it is tragicomic. Not lowering the costs is not the same as adding to them. The imposition of further taxes is also not the same as the lowering of taxes already imposed: the arguments about deduction are wholly unrelated.

On the second point: your reply is basically "everybody does it, therefore it is OK". If enough people become murderers, should that be acceptable as well?

Trip Advisor said...

As an aside, Mike wrote that there would also be straightforward commerce clause power to require mandates, given Raich,

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